LAMB SHEN CHUEN AND ANOTHER v. LAM WAI TAK

HCMP 1733/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1733 OF 2008

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J U D G M E N T

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1.  Lam Ping Leung [“the Deceased”] died intestate in Hong Kong on 17 November 2003.  His widow Madam Wong was mentally incapacitated.  By an order of a Deputy Registrar of 7 December 2006, the Plaintiffs were appointed as Administrators of the estate of the Deceased pursuant to Section 36 of the Probate and Administration Ordinance Cap. 10 with a grant limited for the use and benefit of Madam Wong during her incapacity.  The Grant was issued on 30 January 2007.

2.  Madam Wong died on 2 May 2008 before the completion of the administration of the estate.

3.  Section 36 deals with grant of representation in case of intestacy.  To ascertain the limitation on the grant ordered by the Deputy Registrar, one needs to go to Rule 33(1) of the Non-Contentious Probate Rules which deals with grant in case of mental or physical incapacity.  That rule provides,

“Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs administration for his use and benefit limited during his incapacity or in such other way may be granted –

(i)  if the person incapable is entitled as executor …

(ii)  if the person incapable is entitled otherwise than as executor, to the person who would be entitled to a grant in respect of his estate if he had died intestate.”

4.  The Plaintiffs are uncertain whether the grant ceased to have effect upon the death of Madam Wong.

5.  The Defendant is a nephew of the Deceased and he was so named to represent the interests of all potential beneficiaries to the estate of the Deceased.  He was chosen for the simple reason that he lived in Hong Kong whilst most other beneficiaries are residing overseas.  By the direction of this court, the other potential beneficiaries were notified of the proceedings and none of them indicated any objection to have the Defendant to represent their interest in these proceedings.  I therefore make an order in terms of paragraph 1 of the Originating Summons pursuant to Order 15 Rule 13.

6.  On the question as regards the limitation of the grant, Mr Fung SC appearing for the Plaintiffs referred this court to the position in England set out in Tristram & Coote’s Probate Practice 30^th Edn at para.13.56.  The wordings of the English rules are slightly different.  The limited grant under Rule 35(2) of the English rules shall be effective until further representation is granted as opposed to a limit on its effect with reference to the incapacity of the person to be benefited.  Despite the difference, Tristram & Coote suggested that a further grant de bonis non is required if the incapacitated beneficiary died during the lifetime of the administrator.

7.  Given that the limited grant is for the use and benefit of the incapacitated beneficiary, the purpose of the grant ceased to exist upon the demise of that beneficiary.  After the death of that beneficiary the administration of the estate would not be for his or her use and benefit.

8.  I am of the view that both as a matter of principle and authority the limited grant ceased to have effect upon the death of Madam Wong.

9.  In the circumstances, there is no person who has any authority to continue to administer the estate of the Deceased.

10.  The Plaintiffs are at liberty to apply for a grant de bonis non.  However, an application for such a grant should be made in the usual manner and whether such a grant should be made in their favour is a matter for the Probate Registry.  This court should not at this stage pre-empt any decision in relation thereto.     

11.  The Plaintiffs and the Defendant are entitled to costs of the application on a common fund basis to be paid out of the estate.  I shall order accordingly.